Under US immigration law when a foreign national enters the US on a K-1 (fiancée) visa, he or she must marry the US citizen fiancé(e) (the petitioner) within 90 days of their arrival in the United States. After marriage they have to file for Adjustment of Status. Similarly if a foreign national enters the US on a K-3 visa (based on marriage to US Citizen outside the US), then he or she too has to file for the Adjustment of Status to Permanent Residence after coming to US. If the marriage is less than 2 years old at the time the adjustment is granted the foreign national will be given ‘Conditional Residency,’ valid for two years. At the end of the two years, the couple must file a “joint petition” to remove the conditions on the green card.
But what happens if everything doesn’t go as planned and the couple gets divorced while their adjustment application is pending; before the green card is granted? (i.e. the foreign national enters on a K visa, files for adjustment of status, but before the initial adjustment interview, the couple gets divorced).
This issue recently came before the Ninth Circuit Court of Appeals. In the case before the 9th Circuit a foreign national entered the U.S. on a K-1 visa, got married to the US citizen who filed the K-1 petition, filed an application to adjust status, but after more than 2 years from the date she filed her application for adjustment of status, (and while she was still waiting to have an interview with USCIS), the marriage ended in divorce. The USCIS denied her adjustment of status because of the divorce, and she was put in removal proceedings.
The USCIS based their decision on the fact that the marriage was no longer viable. It was argued by the USCIS that a K visa holder is ineligible to adjust status to lawful permanent residence if the marriage ends before the USCIS adjudicates the application for his or her adjustment of status. However, on August 12, 2008, in an important immigration decision issued by the Ninth Circuit Court of Appeals, the court held that foreign nationals who marry their fiancé after entering the United States on a K-1 fiancé visa, and who subsequently obtain a divorce prior to obtaining permanent resident status, are still entitled to adjust to resident status.
In CHOIN V. MUKASEY, Yelena Choin was admitted to the U.S. in 1998 as the fiancée of a US citizen, and her two children were admitted in K-2 status. On February 20, 1999, Yelena married her US citizen fiancé, Albert Tapia, and on April 14, she and her children applied for adjustment of status. Almost two years later, on April 9, 2001, five days short of their second wedding anniversary, Choin and Tapia divorced.
Yelena's immigration nightmare began on August 27, 2001, when the USCIS denied her adjustment application because of the divorce, and placed her in removal proceedings. An Immigration Judge also denied her adjustment application and the Board of Immigration Appeals (BIA) agreed with the IJ. The BIA also denied Yelena's Motion for Reconsideration.
Yelena challenged the BIA's ruling before the 9th Circuit Court of Appeals. The
principal issue was whether the Immigration Judge and the BIA had properly interpreted
section 245(d) of the Immigration and Nationality Act, which holds that – the
Attorney General may not adjust . . . the status (K visa) except to that of an
alien lawfully admitted to the United States on a conditional basis under section
1186a of this title as a result of the marriage of the nonimmigrant .
. . to the citizen who filed the K visa petition. (Emphasis added)
The Appeals Court held that the language of section 245(d) was "ambiguous" and that the purpose and context of § 245(d) also do not support the government's reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency's file cabinet. The Court relied on their previous holding in Freeman vs. Gonzalez, 444 F.3d 1031. Freeman holds that if a marriage to the US citizen was bona fide, the fact that the citizen spouse dies before the USCIS makes a final decision on the application for adjustment of status does not stop it from being approved.
As a result of the Court's decision in Choin vs. Mukasey, Yelena's immigration nightmare finally ended.
This holding continues a long line of cases (Matter of Boromand, Matter of McKee) that hold that a marriage must only be valid at inception. Indeed, the parties do not need to be married at the time USCIS adjudicates the adjustment application.
Conclusion:
The government has long refused to grant adjustment of status for K visa recipients whose good faith marriage ended in divorce prior to the adjudication of the adjustment application It is gratifying to see that the termination of the good faith marriage through divorce need not result in the removal of the K visa holder when it is the government that takes several years to adjudicate the applications. Prior to the Choin decision, the USCIS would have denied the application for adjustment of status since the marriage was no longer in existence. However this is no longer true, at least for applications submitted by persons who live in any of the states within the jurisdiction of the US Court of Appeals for the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington).
Thus, if you enter into a bona fide marriage, but unfortunately the US citizen
spouse dies, or the marriage ends in divorce before the USCIS makes a decision
on the application for adjustment of status, don’t panic. The 9th Circuit's holdings
in Freeman vs. Gonzalez and Choin vs. Mukasey may save you from
deportation and allow you to adjust your status to permanent resident.
We will discuss the Freeman vs. Gonzalez in detailed in our next article.
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The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com
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